SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE: JUDGE: March 10, 2017 HON. SHELLEYANNE W. L. CHANG DEPT. NO.: CLERK: 24 E. HIGGINBOTHAM DR. JOEL MOSKOWITZ, an individual, Petitioner and Plaintiff, Case No.: 34-2016-80002358 v. CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, a California State Agency, Respondent and Defendant. Nature of Proceedings: RULING ON SUBMITTED MATTER AND ORDER: PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF The following shall constitute the Court s tentative ruling on the above matter, set for hearing in Department 24, on Friday, February 24, 2017, at 11:00 a.m. The tentative ruling shall become the final ruling of the Court unless a party wishing to be heard so advises the clerk of this Department no later than 4:00 p.m. on the court day preceding the hearing, and further advises the clerk that such party has notified the other side of its intention to appear. Petitioner seeks a writ of mandate and related declaratory relief directing Respondent California Department of Public Health (Respondent or DPH) to make available a document advising the public regarding the risks of Electromagnetic Frequencies (EMF) associated with use of Cellular Phones (Guidance Document). The Petition is GRANTED. I. Background DPH is the state agency responsible for protecting the health and well-being of the people of California. DPH s core activities include preventing disease, protecting the public from unhealthy and unsafe environments, and producing and disseminating data to inform and evaluate public health status. As discussed in the Petition and briefs, DPH has investigated the risk posed by EMF fields emitted by cellular phones and other wireless devices, and prepared the Guidance Document. (Answer, 1.) Petitioner alleges that the Guidance Document summarizes the results of scientific studies on the health effects of EMFs emitted by cellular phones and other wireless devices, and made recommendations to the public for reducing health risks associated with cellular phone use. (Petition, 13.) However, DPH has chosen not to release the Guidance Document to the public. Page - 1 - of 7
On January 27, 2014, Petitioner requested pursuant to the Public Records Act (PRA), Govt. Code, 6250, et seq., copies of all versions of cellular phone use guidance documentation prepared by the Environmental Health Investigations Branch within the DPH. (Petition, 14.) Dr. Rick Kreutzer, Chief of the Environmental and Occupational Disease Control for DPH, responded, and acknowledged that DPH prepared a guidance document and that it should receive final approval soon. DPH eventually denied this PRA request. On June 11, 2014, Petitioner made a second PRA request for the Guidance Document as well as any e-mail or correspondence pertaining thereto. DPH advised Petitioner that copies of draft guidance were exempt from disclosure per Government Code section 1 6254, and that DPH would notify Petitioner of any non-exempt items. Nothing was ever produced. On January 14, 2015, Petitioner made a third PRA request to obtain the most recent version of the cellular phone use guidance document authored by staff in the Environmental Health Investigations Branch. (Petition, Exh. 10.) DPH denied the request per Section 6254(a) and 6255. 2 (Petition, Exh. 11.) In its denial, DPH noted that it chose not to issue the Guidance Document in light of updated guidance on this issue by the federal Center for Disease Control. (Id.) In May 2016, Petitioner filed a petition seeking a writ of mandate requiring DPH to make the requested documents available to him. On February 22, 2016, DPH lodged under seal copies of documents responsive to Petitioner s PRA requests. The Court has reviewed these documents. II. Discussion a. Evidentiary Objections The parties have each objected to the declarations and attachments thereto submitted in support of the parties briefs. The Court rules as follows: As to Petitioner s objections to the declaration of Mark Starr, furnished by Respondent DPH in support of its opposition brief: Objections 1-8 are OVERRULED. Objection 9 is SUSTAINED. 1 Unless otherwise specified, all future statutory references shall be to the Government Code. 2 On April 1, 2016, Petitioner also made a similar PRA request (which is not the subject of this Petition) to DPH, and its parent agency, California Health and Human Services Agency (CHHSA). DPH and CHHSA responded that it had no records responsive to the request, or that any responsive documents were exempt from disclosure. Page - 2 - of 7
Respondent DPH has objected to and moved to strike portions of declarations or exhibits thereto, of the declarations of Joel Moskowitz (Moskowitz Declaration) and Claudia Polsky (Polsky Declaration) in support of Petitioner s Opening Brief. DPH s motion to strike portions of the Moskowitz and Polsky declarations or exhibits thereto is DENIED. DPH moves to strike pursuant to Code of Civil Procedure section 436. This motion to strike is improper, as the declarations and exhibits attached thereto are not pleadings. (Code Civ. Proc., 436, 420, 422.10.) As to the Moskowitz Declaration, the Court rules as follows: the Court will disregard statements in the Moskowitz Declaration to the extent they render an opinion as to whether DPH violated the PRA, or as to whether Dr. Moskowitz acted to discharge any ethical duties to the public in bringing this suit. DPH s objection to Exhibit A (Dr. Moskowitz curriculum vitae) attached to Dr. Moskowitz Declaration is SUSTAINED, as it is irrelevant. DPH s objections to the remainder of the exhibits attached to Dr. Moskowitz Declaration are OVERRULED. These exhibits include articles, reports and guidance documents. DPH s objections are premised on the assumption that the exhibits are offered to prove that cellular phone use causes physical harm. The exhibits are offered to demonstrate a public and scientific concern of the risks associated with cellular phone use, and are not offered for the truth of the matters asserted in those exhibits. Thus, they are not hearsay and expert testimony is not required. DPH s parallel objection that Petitioner failed to seek judicial notice of the exhibits is OVERRULED. DPH makes similar objections to the exhibits attached to the Declaration of Claudia Polsky. These objections are OVERRULED. The exhibits to the Polsky declaration include reports or studies or surveys. Like the exhibits attached to the Moskowitz Declaration, they are offered to demonstrate a scientific concern of the risks associated with cellular phone use. b. Public Records Act Under the PRA, a public agency must make public records promptly available to any person who submits a proper PRA request. (Gov. Code, 6253(b).) The purpose of the PRA is to increase the freedom of information by giving members of the public access to information in the possession of public agencies. (Filarsky v. Superior Court (2002) 28 Cal.4 th 419, 425.) However, when a public record is exempt from disclosure by an express provision of law, an agency may refuse to make the record available. (Gov. Code, 6253(b).) All exemptions to disclosure must be narrowly construed. (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4 th 819, 825.) A public entity claiming the exemption bears the burden of showing that the requested information falls within that exemption. (Citizens for a Better Environment v. Department of Food and Agriculture ( Citizens ) (1985) 101 Cal.App.3d 704, 711-712.) Under Section 6258 [a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. (Gov. Code, 6258.) Page - 3 - of 7
If it appears from the plaintiff's verified petition that certain public records are being improperly withheld from a member of the public the Court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. If the Court finds that the public official's decision to refuse disclosure is not justified under the PRA, the Court shall order the public official to make the record public. (Gov. Code, 6259.) i. Preliminary Drafts Exemption In denying Petitioner s PRA request, DPH asserted that the records were exempt under Section 6254, the preliminary drafts exemption. DPH asserts that it properly withheld the Guidance Document as a draft under this exemption. The Court disagrees. Section 6254(a) exempts from disclosure Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure. To meet this exemption, DPH must show that (1) the document is a preliminary draft, note, or interagency or intra-agency memorandum, (2) that is not retained by the DPH in the ordinary course of business, and (3) that the public interest in withholding this record clearly outweighs the public interest in its disclosure. DPH bears the burden of showing that the Guidance Document in question is a draft. DPH cursorily declares that the Guidance Document is a work in progress. (Starr Decl., 22.) However, DPH points to no other evidence to indicate the Guidance Document s draft status, e.g., if the Guidance Document contains comments, edits or a draft stamp, a statement that the Guidance Document requires additional work, study or research, a statement that there is a dispute to the scientific studies requiring more research before the Guidance Document may be released. Rather, it appears that the Guidance Document may be in final form, but has not been approved by the agency for release to the public. The Court s in camera review of the documents lodged by DPH confirms this. The Court s in camera review reveals (1) that most of the documents bear little or no indicia that the documents are drafts, and (2) the proposed edits on very early versions of the Guidance Document are superficial, in that the edits are for clarity rather than the product of a scientific dispute as to research conclusions. The parties agree that no court has addressed whether, in the context of the draft exemption, a document that has been prepared, but not released to the public, retains its preliminary draft nature. The Court agrees that the Guidance Document is predecisional, in that it has not been disseminated to the public. However, to accept DPH s argument that the Guidance Document is a draft because it is not officially approved would render the term draft meaningless. It would allow any document that an agency chooses not to release for public review (after years of preparation in this case) to be a draft, and reward agency delay and evade public disclosure. Page - 4 - of 7
Additionally, DPH cannot show that the Guidance Document meets the second prong of the preliminary drafts exemption test. DPH has presented no evidence that the Guidance Document is not retained by the DPH in the ordinary course of business. (Citizens, supra, 171 Cal.App.3d. at p. 707.) If preliminary materials are not customarily discarded or have not been discarded as customary they must be disclosed. (Id. at p. 714.) Indeed, the deposition of Greg Oliva, Assistant Deputy Director for Center for Chronic Disease Prevention and Health Promotion at DPH, and the declaration of Mark Starr, the Deputy Director for DPH s Department of Environmental Health, indicate that the scientists preparing such advisory documents retain drafts of them, and that the agency retains drafts of documents like the Guidance Document. (Polsky Declaration, Exh. B; Declaration of Lisa Tillman in support of Opposition Brief, Exh. AA; Declaration of Mark Starr (Starr Decl.), 16-18.) As such, DPH has not met its burden of showing that the Guidance Document falls within the draft exemption of Section 6254(a). 3 ii. Catch-All Exemption DPH also argues that it is justified in withholding the Guidance Document under Section 6255, the catch-all exemption. This exemption is also inapplicable. Section 6255 permits the agency to withhold a record if it can demonstrate that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, 6255(a); Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338.) The agency withholding the record bears the burden of demonstrating that these facts exists and must establish a clear overbalance on the side of nondisclosure. (Humane Soc y of the United States v. Superior Court ( Humane Society ) (2013) 214 Cal.App.4 th 1233, 1255.) Courts apply the catch-all exemption on a case-by-case basis. (Ibid.) In examining the public interest in disclosure, the issue is whether disclosure would contribute significantly to public understanding of government activities. [Citation.] Thus, in assigning weight to the general public interest in disclosure, courts should look to the nature of the information and how disclosure of that information contributes to the public's understanding of government. (Humane Society, supra, 214 Cal.App.4 th at p. 1268.) The Court agrees with Petitioner that there is significant public interest in DPH s investigation into risks associated with cellular phone use and advising the public as to those risks. These duties fall squarely within DPH s core activities as a public health agency. It is also undisputed that DPH has been researching the issues associated with the Guidance Document since 2010, but has chosen not to release the document to the 3 The third prong of the preliminary draft exemption test is if the public interest in withholding those records clearly outweighs the public interest in disclosure. DPH has not met its burden in establishing this prong for the same reasons stated in the catch-all exemption discussion. Page - 5 - of 7
public. The public has an interest in ensuring that an agency charged with protecting the public health investigate this issue and timely advise the public without excessive delay. The Court also finds unavailing DPH s argument that early disclosure would cause undue panic and unnecessary doctor or medical visits. This concern is paternalistic. The public has a right to be informed of the health risks associated with activities so that the public can make informed decisions before participating in those activities. Additionally, Petitioner has presented evidence that other entities have warned the public of the risks that are the subject of the Guidance Document, and there has been no public hysteria. DPH also contends that interested public can research the issues encompassed by the Guidance Document in other places, or with other agencies, such as the Center for Disease Control. This contention suggests that DPH is trying to avoid its duty to inform the public about potential health concerns. DPH argues that the public s right to this information is outweighed by the compelling interests in non-disclosure. Specifically, DPH argues that Guidance Document is the product of research conducted by or evaluated by DPH s staff scientists, and that disclosure prior to the agency s decision to release it could chill candid discussion of the draft among colleagues and within the agency. The Court is not persuaded. DPH has furnished a declaration stating that staff scientists regularly exchange data, draft manuscripts, and concepts about their ongoing research, and that these discussions allow DPH s staff scientists to freely obtain their peers professional opinions and thoughts about the methodology, data collection, preliminary findings, recommendations, and other elements of their ongoing research. (Starr Decl., 14-15.) The declaration states that an advisory document, such as the Guidance Document, is subject to candid discussion and review internally with supervisors or other agency personnel, (Id., 16-17.) DPH argues that disclosure of the Guidance Document could chill the free exchange of critiques and ideas that are essential to research. (Humane Society, supra, 214 Cal.App.4 th at p. 1259.) However, unlike the Humane Society case cited by DPH, the Guidance Document a brief two or three page document 4 is the product of research, not documentation of the informal exchanges of information that guide the research process. The Court cannot conclude from DPH s declaration that disclosing the Guidance Document would chill the free exchange of critiques and ideas that are essential to research. The Court s in camera review of the documents lodged by DPH confirms this conclusion. Additionally, DPH s declaration is insufficient to support DPH s argument that the Guidance Document should be withheld to protect DPH s deliberative process under Section 6255. DPH has recited some of the general policy interests served by the deliberative process in general. However, DPH has not explained the particular and compelling harms of disclosure that substantially outweigh the competing interests in 4 (See Polsky Decl., Exh. B [Deposition of Greg Oliva], p. 18.) Page - 6 - of 7
disclosure. This is insufficient to carry DPH s burden. (Caldecott v. Superior Court (2015) 243 Cal.App.4 th 212, 226.) Indeed, as noted above, DPH has presented little evidence as to the Guidance Document s status as a draft. Rather, the Guidance Document appears to be in final form, but has simply not been approved by agency personnel. Accordingly, disclosure would have little impact on the free exchange of critiques and ideas that are part of the research process. On these facts, the Court concludes that DPH has not shown that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. III. Disposition The Guidance Document does not fall within either of the exemptions cited by DPH, Section 6254(a) or Section 6255. The Petition is GRANTED. Petitioner is entitled to a writ of mandate directing DPH to comply with Petitioner s PRA requests and release the Cellular Phone Use Guidance Documentation. Petitioner s claim for declaratory relief is also granted. (Gov. Code, 6258.) Counsel for Petitioner is directed to prepare a formal order and a separate judgment. The order and judgment shall each incorporate this ruling as an exhibit thereto. The Court further directs Petitioner to prepare a separate writ of mandate. Petitioner shall submit the order, judgment, and writ to opposing counsel for approval as to form, and thereafter submit them to the Court for approval in accordance with the California Rules of Court, rule 3.1312. The writ of mandate shall be prepared for the signature of the Clerk of the Court. Respondent shall file a return to the writ within 60 days of this order. RULING AFTER HEARING The Court took the matter under submission. The Court affirms the tentative ruling with the following modifications. At the hearing, DPH argued that the Guidance Document falls within the preliminary draft exception, because it is a scientific document. There is no support for this argument within the text of Section 6254(a) or the other pertinent PRA statues. Thus, the Court concludes that the Guidance Document does not fall within this exception. Petitioner notes that DPH released a copy of the Guidance Document with the text superimposed on the document s face Draft Document and Not for Public Review. Petitioner suggests that DPH may have defaced or altered the Guidance Document. The Court makes no ruling on this issue, but notes that DPH may not deface or alter the Guidance Document released to Petitioner. Page - 7 - of 7